The European Union and Penal Law

Abstract

Technically-speaking, penal law remains outside the competence of the European Communities and Union. However, mirroring other legal developments within Europe, a combination of higher Community 'principles' such as proportionality, non-discrimination, free competition and loyal co-operation, together with secondary Community law, has on the one hand, led to an unforeseen process of the harmonisation of national penal systems; with national norms either being set aside by Community law, or given extended scope in the pursuance of EC/EU goals. On the other hand, certain European interests -most notably, the need to safeguard the European Union budget -have proven strong enough to prompt the evolution of a nascent penal law of the EU; the most noteworthy development here being the drawing up of an independent European 'corpus juris' covering penal policy and procedure in the area of EU budget protection.

European criminal law and European identity

“…(1) the principle of European territoriality (European Public Prosecutor); (2) the principle of judicial control (juge de libertés) and (3) the principle of confrontational proceedings (Delmas-Marty, 1998). If, as discussed above, parts of criminal law in the Union become criminal law of the Union, the scope of such principles should be extended to those parts of substantive criminal law to be Europeanised.…”

“…Below I will first discuss the way the CT redistributes the attributes of sovereignty in the field of criminal law, comparing it to the way this is done in the 23 About the Corpus Iuris, see Delmas-Marty (1998). 24 See about the European Arrest Warrant footnote 47, for an example of imposed criminalization of environmental offences see section ''''Reception'' of the CT by the European court of justice'' below.…”

Supranationality Versus National Sovereignty – Linking Points Between EU Law and National Criminal Law

“…[3] Using this principle, the European Court of Justice has identified an obligation to sanction those who breach EU law. [4] In the famous Greek Maize Case, the Court observed that the principle of sincere cooperation requires the Member States to penalize any persons who infringe Community law in the same way as they penalize those who infringe national law. Although the choice of penalties remains within the discretion of the Member States, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.…”

“…Rather, a procedural obligation of similar treatment is clearly imposed on Member States, who must ensure that breaches of EU law are punished on substantive and procedural conditions similar to those applying to breaches of national law and must proceed with the same diligence as they use in implementing the corresponding national legislation. [7] It means that the Member States have freedom in the choice of the type of (effective, proportionate and dissuasive) sanctions; however, if the national law provides criminal sanctions for the violation of the national law, Member States are obliged to use criminal law measures for the violation of EU law as well.…”

Fair Trial Rights and the European Community's Fight Against Fraud

“…92 10 Right to Con®dentiality On the level of the European Communities, the right to con®dentiality is secured in various ways. 93 The scope of the privilege of professional secrecy and legal privilege in competition cases is currently being disputed.…”